European Council on Foreign Relations

The Democratic Republic of Congo

by Laura Davis

Congo’s wars - the ‘war of liberation’ (1996-1997) and the ‘Congo War’ (1998-2002)- followed decades of brutal colonialism, then oppression and kleptocracy under President Mobutu Sese Seko. These were continental rather than specifically Congolese wars [2] combining international, national and local conflicts and combatants. The human cost has been estimated at 5.4 million deaths.[3]

In 1999, the belligerents and their international allies agreed a ceasefire, the withdrawal of foreign troops and requested a UN peacekeeping mission (MONUC). With pressure from the USA and Belgium the agreement also set up the Inter-Congolese Dialogue (ICD) process, [4] which opened in Sun City, South Africa in 2002. South Africa led an intensive multilateral mediation effort between the government, the regional actors and their proxy rebel groups. This culminated in the Global and All-Inclusive Agreement (2002), a power-sharing deal between the government and the main belligerents, with some civil society engagement.

Despite the formal ending of these wars, violence has continued up to the present, particularly in the east. Armed groups proliferate, some reportedly with backing from Rwanda and Uganda. Confrontations between armed groups and the army escalated sharply (again) in the Kivus with the M23 rebellion in 2012, when 2.4 million people were internally displaced.  All groups, including the state security forces, have committed extensive human rights abuses including torture, enforced disappearances, sexual violence, recruitment of child soldiers, extrajudicial executions and unlawful arrests. Abuse has been worst in the east, but systemic violations have been widespread throughout the country.

Justice provisions in peace agreements

Since 2002, peace agreements have included criminal justice proposals to address the conflicts in Congo. At Sun City, delegates mandated the transitional government to call on the UN to set up an international criminal tribunal specifically for the DRC. The government instead self-referred DRC to the International Criminal Court (ICC) in 2004, following pressure from civil society and the international community. The ICD proposed a court with jurisdiction over crimes committed since 1960, but the ICC only has jurisdiction for crimes committed after 1 July 2002 – by which time the wars were over, even if the conflicts were not.

Initially, the authorities cooperated with the ICC. Between 2006 and 2008, they transferred two Iturian militia leaders– Thomas Lubanga Dyilo and Germaine Katanga, who were already in detention - and arrested and transferred a third, Mathieu Ngudjolo Chui, to the ICC. Lubanga Dyilo was found guilty of war crimes in March 2012. Katanga and Ngudjolo Chui were originally tried together for war crimes and crimes against humanity, but in December 2012 Ngudjolo Chui was acquitted, and the Katanga case is suspended pending the Prosecutor’s appeal of the verdict in the Ngudjolo Chui case.

ICC investigations of the situation in DRC have also engaged other states. French authorities, acting on an ICC warrant, arrested Callixte Mbarushimana in France in October 2010; he was released in December 2011 after the Court decided there were insufficient grounds to proceed with a trial. The ICC supported the German authorities in their investigations leading to the arrest and trial of Ignace Murwanashyaka and Straton Musoni under Germany’s universal jurisdiction legislation. In May 2008, former vice president and leading opposition senator Jean-Pierre Bemba was arrested in Belgium at the request of the ICC and transferred to The Hague. He was charged with crimes allegedly committed in the Central African Republic between 2002 and 2003, and not in relation to events in Congo. For some, this arrest, coupled with the lack of investigations into actions by government forces, suggests that the ICC’s strategy is partisan in support of President Kabila and the ruling elite. [5]

The authorities did not, however, cooperate in the case of Bosco Ntaganda, who held senior positions in various rebel groups in the east. The ICC indicted him for war crimes and crimes against humanity allegedly committed in Ituri between July 2002 and December 2003. The warrant was issued in 2006 and unsealed in 2008.  Rather than arrest him, or ask the UN mission to do so their behalf, the Congolese authorities invited Bosco Ntaganda and men loyal to him to become part of the joint Congo/Rwanda military operations against theDemocratic Forces for the Liberation of Rwanda armed group (FDLR). The UN mission provided support to some units during these operations, and state that Ntagaganda’s units did not receive military support. In early 2012, Ntaganda deserted to lead the M23 rebellion and following internal disputes within M23, he voluntarily surrendered to the ICC at the US embassy in Rwanda.

The ICC has influenced the pursuit of justice in Congo, including by providing a legal framework for courts, particularly military tribunals, to adopt and acting as a lodestar for justice activists. There is no evidence that it has prevented peacemaking – in only one case was a person connected to a peace process indicted, Bosco Ntaganda, and the warrant against him was kept under seal until after the Goma agreement was reached.  He was not present at later talks. The ICC has certainly influenced at least some of the international envoys engaged in mediation, and has made them reflect on peace and justice. But the ICC’s influence is weakening: the UN’s largest peacekeeping mission did not arrest Bosco Ntaganda, who was living openly in the main Kivutian cities, and the Congolese army was not strong enough to arrest him without external assistance. He was transferred to the Hague after surrendering to the Americans – a non-state party – in Rwanda – another non-state party – so presumably he calculated that the ICC was one of the least worst options available to him at the time.  There was no credible threat of arrest. Moreover, the ICC is yet to indict anyone in connection with more recent crimes in the Kivus. To date the court has acquitted two suspects and convicted one: justice activists rightly insist on fair trials – including therefore acquittals – but the ratio of acquittal to conviction does not improve the ICC’s standing. 

At Sun City, civil society organisations campaigned against amnesty for serious crimes. The amnesty provision in the Global Accord excludes war crimes, genocide and crimes against humanity. [6] This was the basis of the 2005 amnesty law [7] that establishes the principle of amnesty in the DRC and later amnesties have referred back to it. Civil society remained hostile to amnesty in later agreements:  at the Goma peace conference (2008) there was strong public pressure not permit amnesty for the rebels, one of the armed group’s main demands.The amnesty agreed incorporated the same exceptions as the 2005 amnesty law, but whether this was agreed in good faith is doubtful. In February 2009, the Minister of Justice wrote to the State Attorney General and the Judge Advocate General of the army instructing them ‘not to engage in proceedings against the members of the [armed groups] and to stop all proceedings that have already been initiated. [8]

One month later, the government and rebels agreed a new peace deal – the Ihusi Accord – which includes an unusual article on amnesty. It notes that the National Congress for the Defence of the People (CNDP) believed that the acts that could be amnestied in the 2005 law were too restrictive.[9] The most recent peace deal, the Peace, Security and Cooperation Framework of 24 February 2013 does not mention amnesty. (The countries of the region commit not to harbour or protect those accused of war crimes, crimes against humanity, genocide or aggression, but there is no mention of investigating or prosecuting these crimes.[10] Despite the high numbers of violations and reports by national and international human rights organisations, the number of prosecutions of serious crime remains pitifully low, suggesting the limits placed on the amnesties in these agreements are meaningless. Separate from peace talks, there have been proposals for mixed chambers, but these are yet to be realized.

Other justice mechanisms

The Global Accord provided for a national Truth and Reconciliation Commission [11] to establish the truth of crimes and human rights violations committed between 1960 and 2006. In line with the power-sharing agreement, the Commission’s executive committee included representatives of the signatories to the Global Accord [12]  without scrutiny of their personal records, fatally undermining its credibility. The Commission did not contribute to truth-seeking. There have been subsequent calls for truth-seeking, such as during the Goma conference, but no new truth commission has been forthcoming. None of the peace agreements address reparations for victims.

The most extensive justice provisions in Congo’s peace deals are found where an inclusive peace process that engaged civil society negotiations accompanied the talks. Participation in peace processes effects peace and justice in other ways too.  Since Sun City, women – mainly through women’s associations – have gained prominence. Yet participants in peace processes relate how facilitators rarely gave women a chance to speak and then only on ‘women’s issues’ – which have been reduced to rape and sexual violence.  This is repeated on the rare occasions that international envoys – who have all been male until the UN appointed Mary Robinson Special Envoy in March 2013 – consult women. Women are expected to speak with one voice, on rape, ignoring the wide range and depth of expertise and experience Congolese women have of conflict and peace. This skews understanding of the crimes committed against women and men, and must therefore undermine effects to respond to them. It also stereotypes Congolese women as sexualized victims rather than agents in peace and justice. [13]

Although there were justice provisions in Congo’s peace deals since 2002, they have not been fully implemented. The extensive power-sharing aspect of the Global Accord led to a political and military class dominated by belligerents and entrenching impunity for even the most egregious crimes firmly within the political and military institutions. In 1999, the country was physically divided and the war at a stalemate. It is difficult to imagine an alternative to a power-sharing agreement, but the Congo case suggests that power-sharing must be limited in its application. For example: transitional justice mechanisms, such as truth commissions, must be independent enough from belligerents and the personal integrity of Commission members scrutinized for the institution to be credible.

The effects of power-sharing within the security sector were very significant. Abusive behaviour by security agents goes unchecked. Worse, each peace deal rewarded armed groups with integration into the army in return for (nominal) disarmament. This incentive surely encouraged leaders like Bosco Ntaganda to break away from the process and launch merciless campaigns against the population to strengthen their positions in the next round of talks, simultaneously weakening the army even more. The national justice system remains weak and unable to address serious crimes, at least in part because of the impunity entrenched in the system, and the ICC does not pose a threat to the powerful. The power-sharing aspects of the Global Accord, copied in later peace deals, have arguably not only undermined the justice provisions in the same deals, but also the peace they were supposed to achieve by contributing directly to ongoing violence and systemic abuse by armed groups and security agents in the DRC. [14]

The ‘international community’ is heterogenous in Congo, including many powerful international actors, as well as regional and continental powers. The international committee to accompany the transition had potentially extensive power during the transition, but chose not to use it. After the elections in 2006, the government asserted its sovereignty and foreign officials found they lost access to high government circles from one day to the next. Among the ‘Western’ elements of the international community, there was no shared position on Congo. Indeed, the EU appointed one of its first Special Envoys to the Great Lakes in 1996 (the other was for the Middle East peace process) to generate a common EU stance. On critical issues such as defence reform, the democracies have failed to generate a common approach to DRC and have preferred bilateral relationships, which have arguably reduced the influence of the Western powers.

During the transition, external actors and donors missed the opportunity to promote peace and justice.  Creating a unified army was an illusion and at least most of the external powers were aware of this, but went along with it anyway, presumably hoping to avoid long-term involvement in a complex and difficult process.  They might have had greater success – and been able to disengage more quickly - if they had dealt with the disparate security components separately, and attempted to introduce enforceable standards of behaviour with a view to integration at a later date. At this point, the parties could perhaps trust the new arrangements, and a unified command and control might have been possible.

Most of all, the Congo case suggests that leading belligerents accused of perpetrating serious and systematic human rights violations have to be required or persuaded not to join the new security arrangements, even if prosecution is not (yet) feasible. If vetting is not introduced from the outset in demobilization and reform programmes, it becomes extremely difficult, if not impossible, to introduce at a later stage, by which point impunity is entrenched and – in the case of Congo – violations persist.

The Congolese case suggests that insufficient attention to accountability undermines peacemaking. Not all the interventions that external donors could make to support the justice – and therefore peace – agenda need to be large-scale.  For example, officials could routinely consult women and elicit a wide range of opinion and expertise on a variety of issues, not just rape and sexual violence. Rule of law and support to human rights defenders need to be backed up by engaging the relevant national and regional authorities in political dialogue, including on how to implement and monitor enforceable standards of behaviour within the security sector.

Tackling impunity seems to be dropping down the international agenda: the Framework Agreement of 2013 commits the countries of the region to judicial cooperation, but no mention is made of the ICC – and of course, one of the key stakeholders in the process, Rwanda, is not party to the court. In its strategic framework for the Great Lakes, the EU links its support for regional judicial cooperation with continued cooperation with the ICC.[15] The Framework agreement also commits DRC to pursuing an agenda of reconciliation.  New engagements in Mali and North Africa are diverting attention and resources from Congo, and policy-makers and donors are frustrated that security remains precarious and the humanitarian situation so dire. The extent to which external actors, particularly those like the UN and the democracies that are at least in principle committed to peace and justice, will choose to support interpretations of these provisions that maximize accountability remain to be seen.

Dr. Laura Davis is a writer and consultant. Her research and practice focus on transitional justice and peace mediation. She has a particular interest in the Democratic Republic of Congo and EU foreign policy www.lauradavis.eu.

 


1. This paper was prepared as part of a project of the European Council on Foreign Relations to compare the experience of different situations where international responses to crises involving mass atrocities have faced the dilemma of seeking accountability while trying to bring the crisis to an end. Please cite fully in the event of reference or quotation.
2. Gérard Prunier From Genocide to Continental War: The ‘Congolese’ Conflict and the Crisis of Contemporary Africa. London: Hurst, 2009.
3 International Rescue Committee. Mortality Report in the Democratic Republic of Congo: an ongoing Crisis New York: International Rescue Committee, 2008.
4. Jean-Claude Willame. ‘Le Processus de Paix en RDC après Lusaka’ In L'Afrique des Grands Lacs: Annuaire 2002-2003, ed. Stefaan Marysse and Filip Reyntjens 157-169. Paris : L'Harmattan, 2003.
5. Phil Clark, ‘Law, Politics and Pragmatism: The ICC and Case Selection in Uganda and the Democratic Republic of Congo’, in Courting Conflict: Justice, Peace and the ICC in Africa, ed. Nicholas Waddell and Phil Clark. London: Royal African Society, 2008, 40.
6. Global Accord 2002, Section III(8).
7. Official Journal of the DRC, Law No. 05/023, December 19, 2005, Section 3.
8. Letter dated 9 February 2009 cited in AfriMap and Open Society Initiative for Southern Africa The Democratic Republic of Congo: military justice and human rights – an urgent need to complete reforms Rosebank: Open Society Initiative for Southern Africa, 2010, 8.
9. Ihusi Accord 2009, Article 3.3.
10. Peace, Security and Cooperation Framework for the Democratic Republic of the Congo and the region Addis Ababa, 24 February 2014, p.3.
11. Constitution of the Transition (2003), Article 154.
12. Ibid., Article 157.
13. Laura Davis ‘Power shared and justice shelved: the Democratic Republic of Congo’ International Journal of Human Rights (2013) Vol.17, No. 2. 289-206
14. Ibid..
15. Council of the European Union Joint Communication to the Council
A Strategic Framework for the Great Lakes Region Document 11396/13June 2013.